Botched execution brings use of firing squads into the discussion

Botched executions spark judge's call for firing squad

Updated 8:51 am, Friday, July 25, 2014

Photo: Associated Press

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This undated file photo provided by the Arizona Department of Corrections shows inmate Joseph Rudolph Wood. The U.S. Supreme Court on Tuesday, July 22, 2014, allowed the Arizona executionof Wood to go forward amid a closely watched First Amendment fight over the secrecy surrounding lethal injection drugs in the country. less

This undated file photo provided by the Arizona Department of Corrections shows inmate Joseph Rudolph Wood. The U.S. Supreme Court on Tuesday, July 22, 2014, allowed the Arizona executionof Wood to go forward ... more

Photo: Associated Press

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This injection table, with straps, would be used for the exectuion of a condemned prisoner. Officials from San Quentin State Prison display the newly completed Lethal Injection Facility, on Tuesday Sept. 21, 2010 in San Quentin, Calif. less

This injection table, with straps, would be used for the exectuion of a condemned prisoner. Officials from San Quentin State Prison display the newly completed Lethal Injection Facility, on Tuesday Sept. 21, ... more

Photo: Michael Macor, The Chronicle

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John Zemblidge, right, of Phoenix, leads a group of about a dozen death penalty opponents in prayer as they protest the possible execution of Joseph Rudolph Wood at the state prison in Florence, Ariz. on Wednesday, July 23, 2014. Arizona's highest court on Wednesday temporarily halted the execution of the condemned inmate so it could consider a last-minute appeal. The Arizona Supreme Court said it would consider whether he received inadequate legal representation at his sentencing. The appeal also challenges the secrecy of the lethal injection process and the drugs that are used. less

John Zemblidge, right, of Phoenix, leads a group of about a dozen death penalty opponents in prayer as they protest the possible execution of Joseph Rudolph Wood at the state prison in Florence, Ariz. on ... more

Photo: Associated Press

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Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals: Executions are "savage."

Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals: Executions are "savage."

Photo: J. David Ake, Associated Press

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This undated file photo provided by the Virginia Department of Corrections shows an electric chair which Virginia provides as an alternative to lethal injection. With lethal-injection drugs in short supply and new questions looming about their effectiveness, lawmakers in some death penalty states are considering bringing back relics of a more gruesome past including the electric chair. less

This undated file photo provided by the Virginia Department of Corrections shows an electric chair which Virginia provides as an alternative to lethal injection. With lethal-injection drugs in short supply and ... more

Photo: Anonymous, Associated Press

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FILE - In this Sept. 21, 2010 file photo, the new lethal injection facility at San Quentin State Prison is seen in San Quentin, Calif. Earlier this year, the U.S. Supreme Court rejected Robert Fairbanks' appeal of his death sentence for the 1985 rape and murder of college student Wendy Cheek. With that rejection, Fairbanks joined at least 14 other death row inmates who have "exhausted" their appeals to state and federal courts and are eligible for execution. Michael Morales, who was within hours of his execution in 2006 and Albert Brown, who was handed his death warrant in 2010 only to have his lethal injection called off a day before he was scheduled to die are also on the list of some of California's most notorious killers. less

FILE - In this Sept. 21, 2010 file photo, the new lethal injection facility at San Quentin State Prison is seen in San Quentin, Calif. Earlier this year, the U.S. Supreme Court rejected Robert Fairbanks' appeal ... more

Photo: Eric Risberg, Associated Press

Botched execution brings use of firing squads into the discussion

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It took Arizona nearly two excruciating hours to execute Joseph Wood with drugs whose source the state concealed. Executions in California have been on hold since 2006 because of problems with lethal injections. Last week a Southern California federal judge cited the delays in declaring the state's death penalty system unconstitutional.

Now the West Coast's top-ranking federal judge, a supporter of capital punishment, says it's time to face up to the brutality of executions, drop the medical facade and bring back firing squads.

Any protracted lethal injection "undermines the idea that this is a fast, sure procedure, like putting animals to sleep," Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals in San Francisco, said in an interview Thursday.

Executions, Kozinski wrote Monday in Wood's case, "are brutal, savage events, and nothing the state tries to do can mask that reality. ... We should be willing to face the fact that the state is committing a horrendous brutality on our behalf."

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Kozinski suggested that if executions are to be carried out, death in front of a firing squad would lessen that brutality.

"Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood," he wrote. "If we, as a society, cannot stomach the splatter from an execution carried out by firing squad then we shouldn't be carrying out executions at all."

In the never-ending debate over the death penalty in the United States, Wood's prolonged death has put a new focus on lethal injections, the near-universal method of executions for two decades, blessed by the Supreme Court in 2008 as safe, reliable and painless.

Secret sources for drugs

Leading manufacturers of lethal drugs, increasingly unwilling to be linked to executions, are withdrawing their supplies, while the remaining suppliers are reluctant to be identified. States, in response, are resorting to secret sources for the drugs - and, not coincidentally, there have been at least three drawn-out, mishandled executions this year.

"It's never been worse than now ... with the drug shortage, the experimentation, states using whatever drugs they can get their hands on," said Deborah Denno, a law professor at Fordham University and a longtime researcher and commentator on the death penalty.

Wood was executed Wednesday for murdering his former girlfriend and her father in 1989. The state identified the two drugs it injected - the same chemicals used in a botched execution in Ohio in January - but not their sources, the dosages or expiration dates, or the qualifications of the execution team.

The Ninth Circuit, which oversees federal courts in nine Western states, ruled 2-1 on Saturday that Arizona must disclose the information, but the Supreme Court overturned that ruling and lifted the stay of execution Tuesday, without explanation. An hour into the planned 10-minute execution, with Wood still breathing, his lawyers asked a federal judge, and then the Supreme Court, to call a halt, but got no response.

Several reporters on the scene agreed with one of Wood's lawyers that Wood was gasping and snorting for more than an hour. State officials said he was snoring and comatose. Arizona Gov. Jan Brewer ordered a review of the state's injection procedures but said there was no evidence that Wood was conscious or suffering.

The impact on public attitudes is less clear. As Stanford law Professor John Donohoe observed, accounts of painful executions are often greeted with grim satisfaction by death penalty advocates, who point out that the murderer's victims suffered more.

But for the uncommitted, Donohoe said, "I think it likely will push people to be more apprehensive about the death penalty."

748 on Death Row

In California, an initiative to repeal the death penalty lost by 4 percentage points in 2012. The state has 748 Death Row inmates but has not executed anyone since 2006, when a federal judge ruled that multiple flaws in lethal injection procedures and staff training posed an undue risk of pain that violated constitutional standards.

California has sentenced more than 900 convicted murderers to death since reinstating capital punishment in 1977 but has executed only 13, with the average stay on Death Row now nearing 25 years. U.S. District Judge Cormac Carney cited those figures in his ruling July 16 that the state's death penalty system has broken down and violates constitutional standards.

The ruling applies only to one case, an Orange County rape-murder, but would have statewide impact if upheld on appeal.

Hadar Aviram, a law professor at UC Hastings in San Francisco and an opponent of capital punishment, said Carney's ruling and the Arizona execution send the same message.

"We're spending an enormous amount of state resources on something that is useless, shameful and does not deter people," Aviram said. No matter the method, she said, "we're trying to do something with the death penalty that's impossible to do. We're trying to divorce death from suffering."

That's not so, said Kozinski, appointed to the appeals court by President Ronald Reagan in 1985. In Thursday's interview, he said he believes current death penalty laws should be narrowed but not abolished, and that executions can be performed humanely.

But medications, he said, "are made for healing, not for killing," and it's time to reopen a discussion of other execution methods, like firing squads.

In his written opinion Monday, which he wrote as a dissent from the Ninth Circuit's decision to block Wood's execution, Kozinski said death by gunfire is reliable and practical, with no shortage of trained executioners on the state's payroll.

Firing squads were once used for executions by the U.S. military, which has switched to lethal injections. They have been used for a handful of civilian executions, most recently in 2010 in Utah, where Ronnie Lee Gardner, a convicted double murderer, was killed by bullets fired by five sharpshooters in the state's death chamber.

Utah abolished firing-squad executions in 2004 but allowed prisoners sentenced to death before then to choose that method rather than lethal injection. Only one state, Oklahoma, authorizes firing squads to carry out current death sentences, and would use them only if the courts barred executions by lethal injection or the electric chair.

Legislation needed

Execution by firing squad would require legislation in states like California, where the only authorized methods are the gas chamber, which hasn't been used since 1993, and lethal injections.

Fordham's Denno said it's worth considering. Execution by firing squad is "humane and dignified," she said, and "it's the honest way to do things."

Even a strong opponent of the death penalty - Cassandra Stubbs, director of the American Civil Liberties Union's capital punishment project - said Kozinski has raised "a good issue for discussion."

"He said it was brutal and that's appropriate because that's what capital punishment is," she said. "We have tried to force medicine into becoming a weapon ... and it has turned out to be brutal and torturous."

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